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PERM: delivery of audit letter must be proved

The Department of Labour has issued a series of decisions explaining what happens when the national Programme Electronic Review Management (PERM) office asserts that it sent an audit letter which the employer says it never received.

In the United States, where mail is reliable, there is usually a presumption that a letter mailed in the normal course of business was properly received by the addressee. However, the presumption of delivery depends on proof provided by the sender that the letter was actually mailed. Disagreements about delivery abound.

In a string of administrative court cases on the subject, the Board of Alien Labour Certification Appeals has held in favour of employers, but only when two conditions are met:

The employer must assert, under oath, that it did not receive the audit letter.

The Department of Labour must provide documentation of its internal mailing process to "prove" that it sent the letter.

In the computer age, glitches have added to the likelihood that letters may not have actually been sent, even though the sender sincerely believes that it took all the normal steps. Printer malfunctions are often to blame, such as when audit letters addressed to two different employers may accidentally be inserted in the same mailing envelope. In fact, it is not uncommon for an employer or attorney to receive an audit letter that should have been sent to another person.

The most recent case decided by the board was Jerhel Plastics, Inc (2016-PER-019, July 26 2016).In its analysis the administrative court noted that when audit letters are sent by certified mail, there is a strong presumption that they were probably received. Since the Department of Labour does not normally use certified mail, the board found in favour of the employer which attested that it had not received the letter, because the Department of Labour had no real proof that the letter had actually been sent.

In Jerhel the employer had checked the online status of the application, which consistently showed that the PERM application was under review, and therefore that an audit letter had not been issued. The court also believed that the employer had no motive to lie about not having received the audit letter.

Proving a negative is always a difficult task. In view of the difficulty in proving that an audit letter has notbeen received, employers should check their PERM case status frequently at the Department of Labour's online iCERT portal (the same portal as is used to file a PERM application) and save online reports as proof in case of future disputes.